I’m back from my travels and wanted to follow up on something Eugene Volokh noted in his comprehensive post the Pace University Koran-flushing incident. After detailing how hate crimes typically can only exist as penalty-enhancers to existing crimes, Professor Volokh rightly observes:
It seems to me that this sort of use of the hate crime statutes is at least very dangerous to free speech, and may well be unconstitutional. Unfortunately, people sometimes act in illegal — often mildly illegal — ways when engaged in protest. It’s right to punish them for such actions. But it seems to me that they shouldn’t be punished more (potentially much more, as when a misdemeanor is turned into a felony) because they were motivated by disapproval of a religion, a religious practice, a sexual orientation, and the like, or were motivated by a desire to offend people based on these criteria.
Such additional punishment is not, it seems to me, primarily punishment for the crime (since that would have been covered by the unenhanced punishment), or even for the discriminatory selection of a crime’s target. Rather, it is punishment for the ideology that motivated the crime. And it will deter even speakers who have that ideology but have no plans to commit any crimes: Even such speakers may face substantial extra punishment if they recklessly — or, if the law is broadened, even grossly negligently — damage some property in the course of their speech . . . refuse in the heat of the moment to comply with a command to leave property . . . or do something that may be misinterpreted as intentional misconduct.
Professor Volokh’s concern is especially valid at the university level, where student conduct is intensely regulated. Individual student behavior is regulated by course catalogs, by student handbooks, by departmental guidelines, by facilities managers, and by student organization handbooks. The time, place, and manner of student protest is sometimes so minutely regulated that I have – on more than one occasion – had hour-long debates with university attorneys who are ignorant of the full content of their own regulations. FIRE’s president, Greg Lukianoff, has a saying that I have shamelessly stolen over the years: Public universities are like little European countries. It is sometimes easier to discern the extent of Swiss wheat subsidies than it is to discern where a student group may locate its abortion protest.
And then what happens if a student group is protesting in what they believe is a designated free speech zone and is asked to move by campus police? What if the students try, at that moment, to assert their constitutional rights? Can they be arrested and charged (depending on the nature of the protest) with a hate crime? Under most hate crimes statutes as written, I believe they can be. And that is positively chilling to free speech.